Natural Law

Cathy Miorelli doesn’t think of herself as an environmentalist. When Miorelli decided to run for the city council of Tamaqua Borough – a small town in central Pennsylvania where she has lived her entire life – she didn’t have any sort of eco-agenda. It was 2004, and the hottest controversy in Tamaqua involved a proposal by an outside company to dump sewage sludge and coal fly ash into abandoned mining pits on the edge of town. But the main issue on Miorelli’s mind was creating more transparent governance on the council, which she says had long been dominated by an old boys’ network. “I was just concerned about everything overall, not really so much the environment,” says Miorelli, who has worked for 16 years as the nurse at the Tamaqua high school. “You know, I didn’t run on any kind of platform, saying that I was going to change the world here or anything.”

She did change the world, though. Halfway through her one-term stint on the council, Miorelli spearheaded the passage of an anti-sewage sludge ordinance that included a provision recognizing the rights of “natural communities” to flourish – the first law of its kind in the world. The Tamaqua Borough ordinance inspired dozens of other communities in Vermont, Massachusetts, and Pennsylvania – including the city of Pittsburgh – to adopt similar rights of nature laws. Those ordinances then helped influence the people of Ecuador to put legal rights for ecosystems in that country’s new constitution. The idea that nature, just like people, possesses inalienable rights has percolated up to the United Nations, which has considered a proposal to adopt a “Charter on the Rights of Mother Nature.”

Miorelli finds it all unbelievable. “It’s awesome, really. I just kind of laugh about it, because it’s kind of amazing,” she says. “At the time it didn’t seem like that big of a deal. Like, why wouldn’t we give rights to nature?”

Miorelli had been on the Tamaqua Borough council for about a year and was thinking about ways to stop the proposed dumping when she got invited to something called a “Democracy School” in Schuylkill Township, outside of Philadelphia. That was where she met two men with the Community Environmental Legal Defense Fund: Ben Price, one of the group’s organizers, and Thomas Linzey, CELDF’s founder. “Within minutes of hearing the two of them talk I was like, ‘Oh my god, these guys are unbelievable,’” Miorelli says. “I learned so much. … I think just how they talked about the history of our government, and that the things that we learned in school were a little bit different to what really happened. What they say makes perfect sense.”

Linzey started CELDF in 1995 to help communities stop development projects that posed public health or environmental risks. But he found that even when he won, he lost. Companies were almost always able to slip through the regulatory system meant to control their activities. So CELDF took a different tack and began working with city councils to pass ordinances that simply asserted a community’s right to self-governance and declared that within their jurisdictions corporations would no longer enjoy the rights granted to flesh-and-blood people. To help lay the groundwork for the ambitious ordinances, CELDF started hosting its Democracy Schools in 2003. The weekend-long seminars teach that in order to have real democracy it is necessary to subordinate corporate privileges to the will of local communities.

“Regulation is not really protective of the rights of people in a community,” Price says. Price, 59, spent much of his life in the corporate world, but he says he’s always “been a questioner of received wisdom.” His job at CELDF seems perfect for someone who clearly relishes expounding on big ideas. “We work with communities to establish the greatest degree of local self- governing authority possible,” he says. “If we want people to be the stewards of the environment and to create sustainable communities, first off it can’t be illegal to do so.” He laughs – “and of course it’s illegal to create sustainable communities, because corporations have been declared to be juristic persons with constitutional rights.”

By the time Price and Miorelli met, CELDF had passed dozens of local ordinances striking down corporate personhood. The group was starting to consider a new tactic. Price remembers: “What if, in one of these local ordinances that says no corporation can engage in Activity X, we included a legal statement saying – not only is it the rights of human beings that will be violated – it will be the rights of the ecosystem as well? In other words, we are empowering the community to protect their natural environment, even when they don’t have a claim of ownership to the land, or to the river, or whatever.”

The idea had never been tried. Price asked Miorelli if she would sponsor an anti-dumping ordinance that included a rights of nature provision. She went for it. “I said, well, geez, I’ll go back and try to put an ordinance in,” Miorelli says.

Most of the Tamaqua Borough Sewage Sludge Ordinance is written in banal legalese. Section 7.6 of the ordinance stands out, if only for its ambitiousness. It reads, in part: “It shall be unlawful for any corporation or its directors, officers, owners or managers to interfere with the existence of natural community or ecosystems, or to cause damage to those natural communities or ecosystems. The Borough of Tamaqua, along with any resident of the Borough, shall have standing to seek declaratory, injunctive, and compensatory relief for damages caused to natural communities and ecosystems within the Borough … ecosystems shall be considered to be ‘persons’ for purposes of the enforcement.”

In lay terms: Tamaqua was poised to claim that the environment had inalienable rights. And, moreover, that any human resident there had the right to act as the legal guardian of a threatened ecosystem, even if she couldn’t demonstrate financial harm from the destruction of that ecosystem.

It seemed likely that the ordinance would fail. The old guard on the city council was in favor of allowing dumping since it would bring in revenue. The borough manager was against the ordinance, as was the town’s solicitor, who warned that Tamaqua would get sued if the ordinance passed.

The council chambers were packed on the night of the meeting when the ordinance was discussed. Most of those in attendance spoke in favor of the ordinance, not necessarily because they were in favor of the rights of nature, but because they were opposed to the dumping. (“The pragmatic side is what wins the day,” Price says.) The vote was narrow: three in favor, three against, with one council member absent. Tamaqua’s mayor, Chris Morrison, cast the tie-breaking vote in favor. “If I am going to be sued, so be it,” he said later.

The unprecedented law didn’t immediately get much attention outside of central Pennsylvania. But the following spring the business magazine Forbes published a short article about CELDF. The tone of the story was equal parts condescension and alarm, but the reporter got the essence of the Tamaqua sewage ordinance exactly right: “The law,” she wrote, “flies in the face of thousands of years of Western legal precedent that treats nature strictly as property.”

CELDF’s Tamaqua ordinance was inspired partly by the work of a South African attorney named Cormac Cullinan. His 2002 book, Wild Law: A Manifesto for Earth Justice, argues that it is time to make a new leap in our conception of rights and recognize that nature enjoys the right to flourish. Cullinan’s argument goes like this: By mere virtue of its existence, nature has intrinsic rights; just as we have proclaimed inalienable rights for ourselves, so too, logically, all other beings must have inherent rights. And because the “proper functioning of the Earth community is essential to human life,” Cullinan writes, our rights are inseparable from the rest of the biosphere. “The inherent rights and freedoms of all beings … are ultimately indivisible,” he argues.

This idea is not original. The judges of ancient Rome, for example, recognized that certain biological principles – jus naturale, in Latin – existed independently of the laws of men. Many Eastern religions simply assume the interconnectedness of all of nature’s elements, including humans. The Indigenous cultures of the Americas imagine the universe as a “circle of life,” an arrangement that doesn’t allow for any anthropocentrism.

The dominance of Western Enlightenment thinking (which views humans and nature as separate and apart) marginalized such biocentric worldviews. Over time, though, some thinkers have tried to get industrial societies to consider that humans do have obligations to other beings.

In the nineteenth century an animal rights movement evolved to fight against vivisection and unnecessary cruelty to animals. A few visionaries went further and floated the idea that even trees had value in and of themselves. “Nature’s object in making animals and plants might possibly be first of all the happiness of each one of them, not the creation of all for the happiness of one,” John Muir wrote. In the early twentieth century, the emerging science of ecology made it more difficult to imagine humanity as apart from natural communities. Forester Aldo Leopold’s “land ethic” set a new standard for evaluating the morality of our behavior toward the environment. An action is right, he wrote in A Sand County Almanac, “when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”

The explosion of environmental awareness in the 1970s was accompanied by a new wave of eco-philosophy eager to strike down modern anthropocentrism. In a 1972 lecture Norwegian philosopher and mountain climber Arne Naess coined the term “deep ecology” and said it was time to embrace an “ecological egalitarianism.” That same year, a legal philosopher, Christopher Stone, wrote a now-famous law journal essay, “Should Trees Have Standing?” Stone answered in the affirmative. “The time is already upon us when we may have to consider subordinating some human claims to those of the environment per se,” he wrote.

Such ideas were influential. They helped spark EarthFirst! and seeped into the Endangered Species Act, which asserts that other beings have a right not to be made extinct. Still, even among card-carrying environmentalists the idea of putting humanity on an equal footing with the rest of nature remains a minority conviction. The twenty-first-century environmental movement is focused almost exclusively on “sustainability” – which essentially is the idea that we have to keep Gaia just healthy enough to maintain human civilization. Mostly, we are “saving” the planet for ourselves.

Placed in this context, the new activism demanding legal rights for nature marks an important development for the global environmental movement.

Several factors have spurred the reinvigoration of the idea that we are not the center of the universe. Climate change is an obvious one. As some see it, a new ideology is needed to counter what appears to civilization’s drive to swallow the planet whole. In the US, the push for rights of nature is part of the broader attempt to push back the power of corporations. It’s a way of arguing that the environment should come before corporate earnings.

For some veteran environmentalists, the new effort is coming none too soon. “I am very excited about the move to a rights-based environmentalism,” says Gus Speth, a co-founder of the Natural Resources Defense Council and the former dean of the Yale School of Forestry. “Lord knows we need some new and stronger approaches. And endowing the natural world with rights is a big part of that.”

Bill Twist first heard about the rights of nature concept in 2007 after a colleague attended a CELDF Democracy School. Twist is the co-founder of the Pachamama Alliance, a San Francisco-based NGO that works to defend the Amazon rainforest and the Indigenous communities that live there. Twist’s partners in Ecuador had told him that the new president, Rafael Correa, was about to call a convention to rewrite Ecuador’s constitution. Twist immediately recognized an opportunity: Here was a chance to enshrine the rights of nature concept at the highest level of a nation’s government.

He called Thomas Linzey to propose the idea. The CELDF founder was hesitant, Twist says. He didn’t want to go on a wild goose chase. Linzey told Twist that finding some person of influence in Ecuador to champion the rights of nature would be essential for success.

The champion that Twist and his Ecuadorian partners found was an unlikely ally. Alberto Acosta had been picked to be Rafael Correa’s minister of energy and mines, a powerful position in a nation with significant oil and mineral resources. Acosta, a trained economist, was not known as an environmentalist. But he was popular: He had received the most votes in the election to seat the constitutional assembly, and was quickly chosen to be the convention’s president. And, most important, the rights of nature idea was not new to him.

“When we got to Alberto Acosta, he already had some documents about rights of nature, he was aware of the situation, so we didn’t need to start all over with him,” remembers Natalia Greene, a campaigner at the Quito-based Fundación Pachamama. But even with Acosta’s support, members of the constitutional assembly were skeptical. “Many of the people in the assembly didn’t know much about the environment in general,” Greene says. “For them, to have a constitution that has a lot of environmental laws was enough.”

CELDF staff played a key role in overcoming the reluctance. Acosta invited Linzey and CELDF associate director Mari Margill to Quito to brief assembly members on the idea. The fact that some local governments in the US had already adopted rights of nature ordinances was especially persuasive. Greene says: “That gave them some grounds to say, ‘We aren’t the first country to do this, there is something done before us.’”

Support from Ecuador’s politically influential Indigenous community was also key. At first, Indigenous groups were leery of including the rights of nature language in the constitution. The whole idea seemed yet another example of industrial society’s arrogance. Nature already had rights, some Indigenous people felt; it wasn’t for humans to “grant” nature anything.

“It also sounded weird to the Indigenous people,” Twist says. “They weren’t in favor of it initially, either. But then they saw what it really was – a skillful way of addressing that we have a legal system that elevates property rights and ignores the existence of natural systems.”

In the draft text “natural systems” was exchanged for Pacha Mama, a Quecha phrase meaning “Mother Earth.” A core element of the constitution now echoed the Indigenous cosmovision and that, Greene says, made it difficult for assembly members to oppose the provision. The final wording of Article 71, read: “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”

In September 2008, two thirds of Ecuadorians voted to approve the new constitution in a national referendum. For the first time, a nation-state had made the health of ecosystems a core element of its governing laws.

The next major boost for the rights of nature idea came in April 2010, when Bolivian president Evo Morales hosted the “The World People’s Conference on Climate Change and the Rights of Mother Earth” in the city of Cochabamba. The summit was intended as a response to the formal United Nations-sponsored climate negotiations that had just suffered a meltdown in Copenhagen. The idea was to give civil society groups an opportunity to propose their own solutions for grappling with the climate crisis. The result was the Universal Declaration of the Rights of Mother Earth.

Drafted in part by Cormac Cullinan, the declaration is modeled on the Universal Declaration of Human Rights. It begins ambitiously – “We, the peoples and nations of Earth” – and goes on to assert that “the rights of each being are limited by the rights of other beings and any conflict between their rights must be resolved in a way that maintains the integrity, balance and health of Mother Earth.” On April 22, Earth Day, the 35,000 people attending the Cochabamba summit adopted the declaration as a kind of clarion call for making a stronger commitment to the natural world.

Several weeks later, Pablo Solon, Bolivia’s UN ambassador, submitted the text of the declaration to the General Assembly, the first step toward getting the international body to adopt it.

Ideas matter. The thought-provoking language in the rights of nature laws has helped to re-frame the debate about how to balance the needs of 7 billion humans against the needs of the rest of the planet’s living communities. At the most recent UN climate summits – in Cancun in 2010 and in Durban last December – members of the Global Alliance for the Rights of Nature promoted the idea as an intellectual counterweight to the market-driven approaches (like cap and trade and carbon trading) that have dominated the UN process. At least at the margins, the conversation about our relationship to nature is changing.

Incorporating the rights of nature concept into policy has been a different matter.

Natalia Greene says that 2009, after approval of the new Ecuadorian constitution, was “a bad year.” The Ecuadorian Congress failed to pass a law that was to give judges guidance on how to implement Article 71. Meanwhile, the Congress approved a new mining law that, Greene says, put the interests of mining corporations above the rights of ecosystems. And President Correa, eager to tap into the country’s fossil fuel resources, has made no secret of his disapproval of Article 71.

So far there has been only one court case in Ecuador testing the rights of nature. Last March, a judge ruled that the provincial government of Loja violated the rights of the Vilcabamba River during a road-widening project that dumped rocks and other fill into the river. Construction crews have since stopped the dumping, but the already-impacted sections have not been restored. “We aren’t so happy with the outcome,” Green says. “However, we do have a case that has given a lot of precedent.” Her organization is looking for other test cases to bring in front of judges in 2012.

The situation in Bolivia is equally conflicted. In April 2011, the Bolivian Parliament passed a Law of Mother Earth, but the ministry that is supposed to implement the law has not been established. Meanwhile, Bolivia’s mining and gas industries continue to churn along, and last year the Morales government got in a bruising fight over a road project that critics complained was designed to speed up resource extraction. Pablo Solon, one of the most high profile rights of nature advocates, resigned his post as ambassador to the UN. Solon – a consummate diplomat – did not say he was quitting in frustration, but the reason for his departure seemed clear: He could not lobby for the rights of nature at the UN while his country was charging ahead with fossil fuel extraction. “There must be coherence between what we do and what we say,” Solon wrote in a September 2011 letter to Morales.

Still, the former UN ambassador recognizes that arriving at such coherence will take time. “It will be a process,” Solon says of the Bolivian law. “It won’t be something that will be approved and implemented immediately.”

The same could be said for the United States. None of the municipal ordinances establishing legal rights for natural communities have been tested in court. Rights of nature has not been challenged by corporations, nor has any local government or individual sought to use the expanded definition of legal standing to sue on behalf of a woodlot or a watershed.

At least some of the rights of nature advocates are unconcerned about the legal limbo. For them, the local ordinances are mostly useful as a tactical wedge to prompt a reconsideration of our relationship with the environment. They can be influential even if they are not implemented. “This work is not looking for some kind of ecotopia,” says Shannon Biggs, an organizer at the human rights group Global Exchange who has worked to pass rights of nature measures. (Disclosure: Biggs and I are co-author of the book Building the Green Economy.) “No one is looking for shortcuts with this work. We are moving at the pace of the culture. And rights of nature provides a path for transforming our existing culture into one that does live sustainably, a world where it’s natural to think, ‘What would the forest say about this?’”

Listening to the rights of nature partisans, it’s striking how differently each of them talks about the idea.

For Natalia Greene, battling to put words into practice, this is an effort to establish new legal norms. The same is true for Bill Twist. “How do you start dismantling the systems and structures that stand in the way of a sustainable and just world?” Twist says. “One way you start by is modifying our legal system.”

CELDF’s Ben Price has a different take. “Frankly, I don’t really give a damn what the courts say,” he says. “It’s not simply a legal strategy. It looks like a legal strategy because we use local laws to create a movement, a historic community rights movement, and that includes nature in the definition of community.” The local ordinances aren’t necessarily designed to change laws, but to force a conflict between laws and values that will compel people to rethink the basic assumptions of our society. “It opens the eyes of people, win or lose. People can see more clearly what exactly is at stake.”

Sometimes the rights of nature idea doesn’t sound different from the old utilitarian notion of protecting natural resources for our own well-being: “It is in our best interest to care for that environment and defend that environment because without it we can’t live,” says Doug Shields, a former Pittsburgh councilman who sponsored a rights of nature ordinance in his city. Sometimes the idea breathes the biocentric worldview of Cullinan’s Wild Law: “We have to see the damages [to the environment] not only from the perspective of humans, but also from the perspective of nature itself,” Pablo Solon says.

The differing interpretations could be considered a virtue, the natural consequence of having a big idea. Since rights of nature is an ideology – a whole worldview – it shouldn’t be surprising that individuals will understand it in their own way. “It’s new for the lawyers, it’s new for the ecologists, it’s new for everybody. We need to train the judges and the lawyers who are going to be defending this,” Greene says.

More than 40 years ago, legal scholar Chris Stone anticipated this difficulty. In his book Should Trees Have Standing? he writes: “Each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable.” But “each advance in the law-legitimating concept of ‘ownership’ fuels a change in consciousness, in the range and depth of feelings.”

This is happening. It is occurring through the work itself, as the changes in Ecuador, Bolivia, and Pennsylvania force some people to re-imagine how they think about, and feel about, the world we live in. Over time, the once- marginal starts to sound mainstream, even ordinary. At least, that’s how it happened with Cathy Miorelli, the first elected official to put rights of nature into a government law.

“I’ve always been an animal person,” Miorelli says. “I’m the kind of person who wouldn’t kill a bug if it comes in my house. So why would I want to kill a stream? Why wouldn’t we give rights to nature? It just came natural to me, like, This is the way it should be.”